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Former Interior Officials And Staff Challenge Interior's Interpretation Of Migratory Bird Treaty Act

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When the Migratory Bird Treaty Act was passed in 1918, it was done in large part to end the killing of birds such as great egrets for the millinery trade. Now the Trump administration is trying to reinterpret how the Act is implemented/NPS

Calling the Interior Department's new stance on takings under the Migratory Bird Treaty Act a "contrived legal standard" and "contrary to the long-standing interpretation by every administration since at least the 1970s," a group of 17 former Interior officials and staff has asked Secretary Ryan Zinke to suspend it.

At issue is a December 22, 2017, opinion from the department's solicitor's office that "incidental takings," those that occur accidentally, such as when birds run into wind turbines or when vehicles run over birds, are not prohibited under the century-old law.

"Interpreting the MBTA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principle that ambiguity in criminal statutes must be resolved in favor of defendants," wrote Daniel Jorjani, a deputy solicitor, in a 41-page memo to Secretary Zinke.

On Wednesday, former Interior officials and staff, including Lynn Scarlett, who was deputy Interior secretary under President George W. Bush; David J. Hayes, deputy secretary under Presidents Clinton and Obama; and Nathaniel Reed, assistant secretary of the Interior for Fish and Wildlife and Parks under President Richard Nixon, wrote the Interior secretary with their concerns over the opinion.

"This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds," they wrote. "This law was among the first U.S. environmental laws, setting this nation and continent on the enviable path to conserving our natural resources. It was passed to implement the first of four bilateral treaties with countries with which we share migratory bird populations (Canada, Mexico, Japan, and Russia). Its intent, and your obligation in enforcing it, is to conserve migratory bird populations.

"Therefore, we respectfully request that you suspend this ill-conceived opinion, and convene a bipartisan group of experts to recommend a consensus and sensible path forward. We would be pleased to work with you, involving the public, toward this end."

The signers maintained that Mr. Jorjani's interpretation of the Act "is a new, contrived legal standard that creates a huge loophole in the MBTA, allowing companies to engage in activities that routinely kill migratory birds so long as they were not intending that their operations would 'render an animal subject to human control.' Indeed, as your solicitor’s opinion necessarily acknowledged, several district and circuit courts have soundly rejected the narrow reading of the law that your department is now embracing."

Bryan Watts, the director of the Center for Conservation Biology, said in an article published by William and Mary College that when the Act was passed into law in 1918, it primarily was aimed at halting the hunting of birds such as egrets so their feathers could be used in making women's hats.

“So the original intent of the act was to stop the widespread decline of all these species. It happened that the main agent of the decline at the time was hunting and most people associate the Migratory Bird Treaty Act with hunting,” Mr. Watts said. “But the intent of the act was not about limiting hunting — it was to protect bird populations.”

Today, he continued, the main focus is not on hunting of these birds, but rather accidental, or incidental, deaths. Mr. Watts added that because of the Act, companies often consult with federal agencies on how they can avoid incidental takings.

“If a company is planning on, say, installing a wind turbine, Fish & Wildlife could tell them that if they moved the turbine to a different site, it would be much better for the birds,” he explained. 

The Act also allowed for fines to be assessed against companies involved in incidental takings if they haven't received a permit that allows for a specific number of bird deaths. That would change under the new interpretation, Mr. Watts told the college.

“The BP Deepwater Horizon oil spill killed a bunch of birds and BP was fined heavily for that. They wouldn’t be now, right? Because they weren’t intentionally killing birds,” he pointed out.

In their letter (attached below) to Secretary Zinke, the former Interior officials and staff noted the success of the Migratory Bird Treaty Act, both at home and internationally.

"The MBTA can and has been successfully used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm. Your new interpretation needlessly undermines a history of great progress, undermines the effectiveness of the migratory bird treaties, and diminishes U.S. leadership," they wrote. "In a world where connections to nature are becoming ever more tenuous, birds are the wildlife that Americans encounter daily. Whether we are conservationists, birdwatchers, hunters, or just citizens who enjoy the natural world, conserving birds is a common interest.

"In addition, we must consider how our treaty partners in Canada, Mexico, Japan and Russia will view this new interpretation. Only a few years ago, the U.S. exchanged formal diplomatic notes with Canada reaffirming our countries’ common interpretation that incidental killing of birds was prohibited by the treaty.

"Just as Theodore Roosevelt declared and demonstrated, we, as federal officials, endeavored to strike a balance between development and conservation. We recognized that strict liability must be tempered with common sense notions of reasonable foreseeability and readily available alternatives. We are anxious to explore this balance and provide you with an approach that we can all support, and one that will continue the proud record of U.S. leadership in conserving birds."

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"This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds," they wrote.

Well, no. President Obama worked assiduously to get around the Migratory Bird Treaty Act by allowing a legal "take" of eagles. Worse, his administration did it using the Federal Register. Now to say that they "observed" the Migratory Bird Treaty Act is ludicrous. Add in the Endangered Species Act, for that matter. What Google, General Electric, Vestas, et al., wanted, they got.

"If a company is planning on, say, installing a wind turbine, Fish & Wildlife could tell them that if they moved the turbine to a different site, it would be much better for the birds," he explained.

Now we're really getting into whoppers. It was Fish and Widlife that insisted on a legal take for eagles, inasmuch as wind farms rarely can be moved. Mr. Watts would have you believe wind farms are cuddly. Just "A wind turbine," now is it? Baloney. It can be thousands. You want to stop killing migratory birds? Then stop playing games with the language. "Incidental" means unintentional. What the Obama Administration wanted was purely intentional. We want the right to kill eagles because our wind energy program has to kill eagles. There is no other way to have these massive facilities.

Note how Mr. Watts then deflects the argument to oil and gas. From his "a wind turbine," he goes to a full-blown oil spill, which yes, are tragic events. "The BP Deepwater Horizon oil spill killed a bunch of birds and BP was fined heavily for that. They wouldn't be now, right? Because they weren't intentionally killing birds," he pointed out. This is pure gibberish. Whether or not they would be fined would depend on whether or not they were culpable. It was Interior Secretaries Salazar and Jewell who asked to remove the principal culpabilities from wind and solar.

The birds are dying--no matter how we're killing them, and I still believe wind power is the worst offender. The turbines are permanent--hardly incidental--and an eyesore on top of that.

Read this link. Have you ever read such doublespeak in your life? And do look at the date for this so-called "final rule." I do believe the man in charge was still Mr. Obama. If that bothers you, so be it.

https://www.federalregister.gov/documents/2016/12/16/2016-29908/eagle-pe...

 

 


Thanks for sharing facts.  They have difficulty dealing with "Former" in their job titles.  They need a hobby!


The Interior Deputy Solicitor's memo states that "every American who owns a cat, drives a car or owns a home", is a potential criminal under the Migratory Bird Act.  Trying to establish that point, he then equates bird deaths from poisons and oil pits, for example with the average American homeowner's cat, car or window.  So a polluting industry is just like your neighbor next door who owns a cat.  Maybe  Messrs. Jorjani and Zinke need a hobby and another job.


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